The term "navigable," says Denman, C. J.,1 " is a relative and comprehensive term, containing within it all such rights upon the water way, as with relation to the circumstances of each river, are necessary for the full and convenient passage of vessels and boats along the channel." In Mayor of Lynn v. Turner,2 the corporation of Lynn Regis was sued for not repairing and cleansing a tidal creek, "as from time immemorial they had been used," whereby, as appeared by one count of the declaration, the plantiff lost the use of his navigation. It was urged that if one count of the declaration was bad, the judgment against the corporation should be set aside, and that, as the place in question was a public navigable river within the tide, no action would lie without proof of special damage; but Lord Mansfield considered that it did not sufficiently appear that it was a navigable river, and that the presence of the tide did not prevent its being in the private estate of the corporation. In Miles v. Rose,3 Gibbs, C. J., considered the flowing of the tide not absolutely inconsistent with a right of private property in a creek, although strong prima facie evidence against such right. In Vooght v. Winch, Holroyd, J., said that if a stream had ever been capable of navigation, an act of Parliament was the only means by which the public right could be determined; but in the later case of Rex v. Montague, he concurred in the opinion that 1 Colchester v. Brooke, 7 Q. B. 339, 374. 21 Cowper, 86, Lofft. 556. Lord Mansfield here said: "Er facto oritur jus. How does it appear that this is a navigable river? The flowing and reflowing of the tide does not make it so; for there are many places into which the tide flows that are not navigable rivers; and the place in question may be a creek in their own private estate." The corporation was held to be bound by prescription to repair. 35 Taunt. 706. 54 B. & C. 598. This was an indictment for cutting a trench across a common and ancient highway. At the trial it appeared that the highway in question was an embankment across a creek, and that the defendants cut down this embankment by order of the corporation of London, who contended that the creek was a public navigable stream, and that the road improperly obstructed it; that the road had been so high for twenty years that no boats could pass over it at any time; and that, for years before, the only evidence of an actual navigation was by very small boats for a brief period at the time of high water. Bailey, J., said: "It was for the defendant to make out that there once was a public navigation. Now it does the public right might be extinguished in other ways than by act of Parliament; as by writ of ad quod damnum, or by the commissioners of sewers in certain cases, or by natural causes, such as the filling of the channel or the recession of the sea. Again, in the case of Mayor of Colchester v. Brooke,1 Lord Denman, C. J., while regarding the flow and reflow of the tide as the strongest evidence that a river was public and navigable, considered the fact that the soil in arms of the sea and public navigable rivers, independently of any ownership of the adjoining lands, is prima facie vested in the Crown, but subject to the public right, and that the grantee of the Crown takes subject to the same right, not inconsistent with the loss of such right if the channel became choked up by natural causes. § 44. The question at what point a river ceases to be tidal, or navigable, first arose in the courts in the case of not necessarily follow, because the tide flows and reflows in any particular place that there is therefore a public navigation, although of sufficient size"; and after reviewing the above cases of Mayor of Lynn v. Turner, and Miles v. Rose, he said further: "The strength of this prima facie evidence, arising from the flux and reflux of the tide, must depend upon the situation and nature of the channel. If it is a broad and deep channel, calculated for the purposes of commerce, it would be natural to conclude that it has been a public navigation; but if it is a petty stream, navigable only at certain periods of the tide, and then only for a short time, and by very small boats, it is difficult to suppose that it ever has been a public navigable channel. But even supposing this to have been at some time a public navigation, I think that from the manner in which it has been neglected by the public, and from the length of time during which it has been obstructed, it ought to be presumed that the rights of the public have been lawfully determined. Most probably the rights of the public (if they ever had any) arose from the flux and reflux of the tides of the sea, so as to make the channel navigable. If then the sea retreated, or the channel silted up, so as to be no longer navigable, why should not the public rights cease? If they arose from natural causes, why should not natural causes put an end to them? But they might also be put an end to by act of parliament, or by writ of ad quod damnum, and, perhaps, by commissioners of sewers, if there were any appointed for the district and they found that it would be for the benefit of the whole level. For these reasons it appears to me that if this case were sent down for trial again, the jury would be bound to find either that there never was a public navigation through the locus in quo, or that it has been determined by some lawful means." The opinions of Holroyd, J., and Littledale, J., were to the same effect. 17 Q. B. 339, 373, 374. See also Rex v. Douglas, 2 Ld. Kenyon, 499; Woolrych on Waters, 237. Rex v. Smith. In that case the city of London, acting under powers conferred by statute, was proceeding to construct a towing path upon the bed of the river Thames, and the defendants were indicted for destroying a pile driven in the course of the work between high and low-water mark near Richmond. In the statement of the case, the river was admitted to be "navigable"; but, as the right of the city was regarded as derived from the Crown's title to tide waters, it was contended in argument that the Thames above London Bridge was not navigable in the technical sense, although there was a regular rise and fall of the river caused by the accumulation and pressure backwards of the fresh water. Lord Mansfield said that the distinction between rivers navigable and not navigable, and those where the sea does or does not ebb and flow, was very ancient, but that the distinction then insisted on, between the case of the tide occasioned by the flux of the sea-water and the pressure backward of the fresh water, seemed to be entirely new.2 He said that the case did not state whether the water, where the tide rises at Richmond, is fresh or salt; but that it rather took it for granted that it is salt, describing the Thames generally as a navigable river. that case, and not decided. 12 Dougl. 441 (1780). In Horne v. Mackenzie, 6 Cl. & Fin. 628, 643, the question was whether the defendants had fished unlawfully by means of stake-nets, which was an illegal act by statute if done in a "river," but permissible in the sea; and it was held that the jury were improperly instructed that "the thing to be looked at is the absence or prevalence of the fresh water, though strongly impregnated by salt"; and that the absence or prevalence of salt water was a consideration of minor importance in such a case. 2 The question was not altogether new, for Lord Hale says (De Jure Maris, c. 4, with reference to the extent to which a river is properly The point was simply raised in called an arm of the sea), that fresh rivers, "though they are public rivers, yet are not arms of the sea. But it seems that, although the water be fresh at high water, yet the denomination of an arm of the sea continues, if it flow and reflow as in Thames above the bridge." This case seems to have been misunderstood. In Angell on Watercourses, § 544, it is said of it that the point in question was by Lord Mansfield "pronounced new and inadmissible"; while in Attorney General v. Woods, 108 Mass. 439, Chapman, C. J., spoke of the question as there "settled." The point was indeed urged by counsel, but Lord Mansfield expressed no opinion upon it, saying that it is the fluctuation of the water, as shown by its regular rise and fall, under the influence of the tide, and not the proportion of salt water to fresh, that determines the point in a river at which its navigable character ceases. It was so decided in the Supreme Court of the United States with reference to the Mississippi River at New Orleans; 1 in Maine, in respect to the Penobscot River at Bangor; 2 and in Massachusetts, as to a portion of the Mystic River where the rise and fall of the water was two feet and the stream only about the same number of feet deep at low tide. In the recent English case of Reece v. Miller, it appeared that the water of the river Wye was not salt at the spot in question, and that in ordinary tides it was unaffected by any tidal influence, but that, upon the occasion of very high tides, the rising of the salt water in the lower parts of the river dammed back the fresh water, and caused it to rise and fall with the tide. It was held that the right of the Crown and the public right of fishery did not apply to the part of the river affected by the tide only under such circumstances or when the action of the tide was reinforced by a strong wind. 4 § 45. A fresh-water river, like a tidal river, is composed of the alveus, or bed, and the water; but it has banks instead of shores.5 The banks are the elevations of land which confine the waters in their natural channel when they rise the highest and do not overflow the banks; and in that condition of the water the banks, and the soil which is permanently submerged, form the bed of the river. The banks 6 5 See ante, § 41, note. Howard v. Ingersoll, 13 How. (U.S.) 381, 391, 427; 17 Ala. 780; Houghton v. The C. D. & M. R. Co., 47 Iowa, 370; Haight v. Keokuk, 4 Iowa, 199, 212; Stone v. Augusta, 46 Maine, 127, 137; Alabama v. Georgia, 23 How. 506. 7 Ibid.; 13 How. (U. S.) p. 415. In distinguishing the banks from the permanent bed of the river, the line is determined by examining the bed and banks, and ascertaining where the are a part of the river-bed, but the river does not include lands beyond the banks, which are covered in times of freshets or extraordinary floods, or swamps or low grounds which are liable to overflow, but are reclaimable for meadows or agriculture, or which, being too low for reclamation, though not always covered with water, may be used for cattle to range upon, as natural or unenclosed pasture.2 Fresh rivers, although not subject to the daily fluctuations of the tide, may rise and fall periodically at certain seasons, and thus have defined high and low-water marks. The lowwater mark is the point to which the river recedes at its lowest stage. The high-water mark is the line which the river impresses upon the soil by covering it for sufficient periods to deprive it of vegetation and to destroy its value. for agriculture.1 § 46. Fresh-water streams which are not a common passage are private property, and the title to the bed of the river ad filum aquae is in the riparian proprietors in severalty and not in common; 5 they own the islands which form in presence and action of the water are so common and usual, and so long continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation, as well as in respect to the nature of the soil itself. Ibid., per Curtis, J., pp. 427, 428; McCulloch v. Wainwright, 14 Penn. St. 171. 199. Press, 18 La. 125, 278; Lacy v. Green, 84 Penn. St. 514; Gavit v. Chambers, 3 Ohio, 495. 5 Rex v. Wharton, Holt, 499; 12 Mod. 510; Carter v. Murcot, 4 Burr. 2162; King v. King, 7 Mass. 499; Lunt v. Holland, 14 Mass.; Dearfield v. Arms, 17 Pick. 41; Knight v. Wilder, 2 Cush. 200; Seneca Nation v. Knight, 23 N. Y. 498; Woodman v. Spencer, 54 1 Ibid.; Haight v. Keokuk, 4 Iowa, N. H. 507; Adams v. Barney, 25 Vt. 2 Ibid.; 13 How. (U. S.) p. 415. 313 How. pp. 417, 415, 428. 4 Howard v. Ingersoll, 13 How. 381; Houghton v. The C. D. & M. R. Co., 47 Iowa, 370; Musser v. Hershey, 42 Iowa, 356; McCullough v. Wainwright, 14 Penn. St. 171; Stover v. Jack, 60 Penn. St. 339; Wainwright v. McCullough, 63 Penn. St. 66. See The Batture, Am. State Papers, vol. 17, p. 90; Public Lands, vol. 2, p. 90, et seq.; Municipality No. 2 v. Orleans Cotton 225; Jackson v. Louw, 12 Johns. 252; Ball v. Slack, 2 Whart. 538; Coovert v. O'Conner, 8 Watts, 470; Barclay Railroad Co. v. Ingham, 36 Penn. St. 194; Poor v. McClure, 77 Id. 214; Bradford v. Cressey, 45 Maine, 9; Poor v. McClure, 77 Penn. St. 214; Cates v. Waddington, 2 McCord (S. C.) 580; McCullough v. Wall, 4 Rich. (S. C.) 68; Noble v. Cunningham, McMullan (S. C.) 289; Hayes v. Bowman, 1 Rand. (Va.) 417; Home v. Richards, 4 Call, 441; Smith v. In |